Court Report: MASH Holdings v SFA

This is my report , from my scribbled notes, of the hearing on 28th April 2016 of the MASH application for Judicial review of the SFA’s decision to accept that David King is a’fit and proper person’ to be a director of a Football club.

Since only the Q Cs and solicitors etc have access to all the statements, averments, productions , it’s extremely difficult to follow the sometimes apparently unconnected points of discussion. Unless you know what ‘statement 9’says, it’s hard to make sense of what someone has said in reply to something in that statement. Also, without the body language, facial expressions ,tones of voice, interruptions of one kind or another, nods of head and so on, you can sometimes feel you have walked into a room full of people variously pursuing the kind of question and answer session that the late Ronnie Corbett exemplified in the brilliant sketch in which he always gave the answer that was appropriate to the second question asked as his answer to the first question: Q What is your date of birth? A. Glasgow .QWhere were you born ? 5th May 1950. and so on.

It was only when I got home after yesterday’s hearings that I found my notes of the first Court business on the subject that I attended was on 24th November 2015, before Lady Wollfe.

I found it useful to read them, as I was trying to write up yesterday’s proceedings. I give them here , but you can skip them and scroll straight to yesterday’s stuff.

No comments on here. Please discuss on main blog

The preliminary hearing on 24th November 2015

Before the judge sat, the Qcs and the Clerk to the Court had a wee discussion simply a how long a substantive hearing might take, and when it might be, with a note that the SFA still had a December date.

When the Court sat, Mr Sanderson for MASH asked for Directions on how to proceed. He told the judge that both parties thought 4th/5th February could be suitable.and that Pursuer could have until end of the current legal term (18th December) to adjust pleadings, the only possible case by the Respondent relating to ‘jurisdiction’/’no jurisdiction’. Parties agreed to exchange notes of argument 14 days before February date, and arguments to be lodged with Court 1 week before the February date, with the ‘bundle’ of Authorities.

Discussion then went on about a preliminary hearing on 11/12/15, on no fewer than 3 pleas by the Defender: no ‘standing’ of the Pursuer,failure to exercise other measures, and the acquiescence by the Pursuer in the decision.

Mr Sanderson ( for the Pursuer) said it would be better if the SFA put in their substantive answers, this not possible in a single day. Want to move on to a single hearing on preliminary pleas ( let’s get to substantive issues sooner/

Mr Dunlop Judge asked what length of time would be required.

Mr Sanderson said, 2 days, maybe.

Judge said: and notes of arguments and joint list of authorities to be available….

Mr Dunlop said there was no good reason to…I don’t understand my learned friend’s difficulty …He has answers 10 and 11.. the respondent’s case is there…These are preliminary pleas, if any of those succeed, then the Petition would be dismissed. This decision is based on a decision made in May, damage to Rangers and Football and we wish that to be ended as soon as possible. If we do this on 11th december then we get on and my submission can be done in one and a half hours. It is do-able in one day.

Judge: If we were to do that, what if pursuer were to ‘reclaim’.

Mr D: ..it would be the same .. e.g what is the standing of an 8.2% shreholder. It’s about case management.

Judge: What are the pleas.

Mr D: the pleas on Standing, relevancy and ‘mora’

Judge: And if the Court is against you?MR D: then

Mr D: then 2 weeks..

Mr Hayes ( representing King] the continued uncertainty is important, and I would adopt Mr Dunlop’s view.

Judge: Which would be your pleas? 1st and 4th?

Mr Hayes: I’m happy to go with Mr Dunlop.

Judge: How long?

Mr H: 1 or 2 days.

[The Clerk spoke to the Judge]

Judge: All of the issues should be dealt with in the first hearing, two days 11th/12th February. I will allow adjustment of Petition and Answers up to a fortnight before the first hearing, with notes of argument and joint bundle of authorities not less than one week before.

Court rose.

Between then and the hearing on 28th April, at which the Petition was withdrawn, and the arguments were about expenses, there was of course further activity of which I am ignorant.

Lord Bannatyne was given very short notice that he would be dealing with the matter.

Petition 1039/15 Mash Holdings Ltd.

Before Lord Bannatyne, Court 11 in Parliament House., 28 April 2016.

For Pursuer: Mr Sanderson QC For Defender:(SFA) Mr Dunlop, QC,

For Mr King: Mr McGuire

Mr S: My Lord,Rangers Football Club Ltd is a wholly owned subsidiary of Rangers International FC plc. The SFA claims the right to determine whether a person is Fit and Proper to be a director of a football club. If a person is deemed not to be Fit and Proper the football club or the operator of the football club which appoints him as a director is subject to disciplinary sanctions.

The Petitioner is a 9% shareholder in the plc.He therefore has an interest in the question of whether a person appointed to the Board meets the Fit and proper criteria, in the question of whether Mr King is a fit and proper person.

The arguments have all been previously set out :

King was convicted in South Africa on 41 charges and faced prison or substantial fines.

Further, and separately, in South Africa his character was severely criticised by the judge who described him as a ‘glib and shameless liar’, and he was fined for contempt of Court.

And he was a Director of RFC PLC , former owner of the Rangers brand, who was criticised by the SFA’s independent judicial panel.

It was therefore surprising when King was declared to be a ‘Fit and Proper person.

The petitioner wrote to the SFA on 3rd June 2015 to ask how they arrived t this decision.

The replies he received in July and September gave no substantial answer to his question.

Therefore, in September these proceedings were raised, on the grounds of irrationality of the decision or faulty reasons.

After the Petition was lodged,there was no further amplification of the reasons given.

At a hearing on 20th November 2015, it was made plain that there was no intention to say anymore.

It was not until 14th April, that information was for the first time provided:

the legal advice in South Africa referred to in their first replies was disclosed

also disclosed was similar advice from S.A. About the judge’s comments

information from the S A revenue service was provided

as was information relating to King’s previous directorship with Rangers

an an explanation of their reasoning process was given

And this was provided on the last possible day for doing so!

There was some consultation about this information. The Petitioner does not agree , but no longer wishes to pursue.

The expenses of the Defender were brought on by himself!

Mr Dunlop: My Lord, I suggest that this matter be disposed of by not accepting the amendments.. [ to the pursuer’s arguments made after receipt of the information from the SFA?????]

I think the Petitioner should pay: the petitioner lacks standing. He is not a member of the SFA.

The decision was NOT irrational for the reasons given there was no duty on the part of the SFA to provide the Petitioner with reasons, but in fact, reasons had now been given

In Answer 6 { edit: referring to the previous exchange of written papers between parties} relating to ‘privilege ‘ in S.A, not 24 months in prison at any time.

And the nub of Answer 10 is that due diligence was carried out. King was not disqualified anywhere., so decision was not irrational.

The onus lay on the Petitioner to show why he had standing and to show that the decision was irrational.

This case called before Lady (Wise?) In December…….

Lord Bannatyne interjected: Can you say why the 2 issues set down were not then dealt with ?

Notes of Argument were given on 21st April 2016…… How did all this happen?

Mr Dunlop: {edit: I think lost the thread here of what Dunlop was explaining. It was on the point that Ashley had no standing merely as a shareholder , and it was here he asked whether a Celtic shareholder would have standing if Mr King was successful to the point of causing Celtic’s share price to fall. I got the impression that that pointless irrelevancy did him no favours}

Mr Dunlop then referred to the English Contempt of Court proceedings and judge, Smith, L J. ‘which your Lordship may have ..’

Lord Bannatyne: I was just sent note about this being withdrawn…

Mr D then told his Lordship about Ashley, Sports Direct’s, attempt to have King done for contempt, and quoted Smith using the word ‘vendetta’ and ‘ ‘very slender basis for this abuse of process’.

He continued : now, when one beers in mind the………. this is part of the same vendetta. If the Petitioner had grounds, he should pay. MASH have acted irresponsibly, and should pay.

Judge: You claim ‘no standing’. The Petitioner say he does…

Dunlop: I suggest we adopt the usual rule? The case is abandoned the day before a two-day hearing. My learned friend’s attempt to avoid the usual rule does not work.

Judge: All of the adjustments were to waive the ‘privilege’ ?

Dunlop: There were averments about the information from Police Scotland , cavilled because of the criminal proceedings.

Judge: I don’t want to go there: I’m the judge in those proceedings.

Mr Maguire ( Counsel representing King) I answer on behalf of Mr King….The adjustments came about … [ edit: I lost what he was saying, I’m afraid]….

The Petitioner should be liable. On the issue of expenses I repeat my learned friend’s view.The Court can show its displeasure at the Pursuer. And this petition is nothing more than a continuation [of the attack?] on the character and conduct of Mr King and would discredit Mr King in football and business.

Mr Sanderson did not refer to reason 9 [14/04/1] “ petitioner is a substantial “shareholder” and 19th of May decision “grounds of rationality” are based on the information available at the time. What we see is reference to information received AFTER the time (19th May 2015).

Ashley also ‘knew’ that King was a director of { edit: lost the next bit,…} …but he was not a de facto director.

This is ..This is just mud-slinging. And Justice Smith’s comments..those proceedings were abandoned and expenses were awarded on an indemnity basis

In my submission, ..a go at the character of Mr King.

On the ‘additional fee’ question, the Petitioner at no point approached Mr King to ask him for further clarification, despite being an interested party.

My motion based on Rule 42(14)(3)e of the Rules of Court is that an additional fee is made and that being declared not to be a fit and proper person is of such importance-risk of losing his role as a director and he has made significant loans from his Family Trust he would have been seriously badly affected.

Judge: Mr Sanderson?

Mr Sanderson: My lord, in my submission my learned friend’s adjustments changed the responses given earlier. Up till 14th April the Petitioner had no idea that the respondent had a ‘Certificate of Good Standing’ from South Africa. And we were only told on 14th April what the legal advice given was.

In answer 8, we were told not a word of this before 14th April.

Judge: How do I decide on the the preliminary issues { edit: these were issues( one of which was to do with the question of Ashley’s ‘standing’ in the matter} raised at the first preliminary hearing in November, where they were kicked into the future, but in the event appear not to ever to have been argued in the December hearing} without hearing detailed arguments. Mr Dunlop says I must follow the normal rules, so the Petitioner pays?

Mr S began to speak, but the judge continued

“ I’ll have to go away and consider the points you make and the position of ‘standing’.”

Mr S: The SFA had taken a decision which affected the Petitioner’s interests and had refused to give reasons.

He had asked on 14th October to be told what the nature of the material was……. My learned friend has not done so until the very last day. If he hhad done so, there would have been no ‘arguments’, no ‘pleadings’.

Judge: Are you saying that Mr Dunlop had said before Lady Wise that nothing further would be added?

Mr S: yes. And we have not had any reason at all for the last minute supply.

Judge: I was going to ask Mr Dunlop a) do you accept general point…. ( pause, chhange of tack) but, Mr Sanderson, why did you not seek recovery of documents?

Mr S: Because we believed our request would have been met with stern resistance, and observations to the effect that ‘it was none of our business” and it was “privileged”/

As far as My learned friend’s motion for his client’s fee is based on the ‘vendetta’ assertion, there is no evidence whatsoever for that. In the English Court, evidence was apparently given. But NO evidence has been brought in THIS Court, that your Lordship could use to form a view that these proceedings were irresponsibly taken.

With reference to Mr King’s readiness to give his waiver of confidentiality to my learned friend Mr McGuire, the lateness of abandonment could not have come any earlier!The information only came on 14th April…And I would have to say that it’s something of a cheek to complain that we abandoned late!

On the vendetta point, I make the same observation I made earlier.

Judge: What was the relevance of the averments in statement 9?

Mr S: the test of “Standing” in Public Law doesn’t apply.In Private Law it is “Title” and “Interest”, and statement 9 set out the reasons why the Petitioner was concerned about what Mr King had previously done as a director of the plc.

I stress again, this is judicial review of the process not about Mr King.he process is flawed. What would happen if the Petitioner won? The SFA cannot remove a director.All that would happen is that RFC Ltd would be subject to disciplinary action, not that King would have to quit being a director. And the SFA would need to consider properly ( from the start) the question of F and Proper.

Judge: Mr Dunlop, why DID the respondent’s attitude to the information they would supply change? Did you say what Mr Sanderson says you said?

Mr D: I pointed to the averments on the rationality charge, and said I was happy with that, on the basis that we would be pleading. There have always been 5 defences.

Judge: Mr Sanderson says this whole matter was raised because no information was provided on the SFA’s ‘rationality’ basis. If that had been provided , then it would have been the end of the matter.

Mr D: Well, I have three things to say,

first, he would say that

second, there was continuous engagement

third, his argument puts the cart before the horse. If, as we say, MASH has no standing, it is not open the defender to give information, privileged or otherwise.

Judge: Mr Dunlop, when was Mr King asked to waive ‘confidentiality’@

MR D: In March…..but I wanted to discuss ‘standing’…..

Judge: We can’t go there. The decision was made by another Lord ordinary..

Mr D.: I appreciate your Lordship’s difficulty, but why does application of the ordinary Rule not follow..?

[Mr McGuire then referred to statement 9 and mumbled something or other that I didn’t catch, butit was , I think, about the damage to Mr K and the right to additional solicitor fee on top of the award of expenses to the SFA]

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